Judge Knot by Todd N. Tucker

Author:Todd N. Tucker
Language: eng
Format: epub
Publisher: Book Network Int'l Limited trading as NBN International (NBNi)

1My case statistics run from 1990 (the first known case) to encompass all known treaty-based ISDS cases that produced a final award on the merits or jurisdiction at any arbitration center as of August 2017.

2As opposed to cases that were settled, where arbitrators were not running the show.

3In recent years, arbitrators have experimented with ordering states to change policies instead of or in addition to making payment. However, these orders cannot be enforced, unlike cash claims that can be taken to third-country courts.

4Indeed, had the tribunal found otherwise, it would have been fatal for Eli Lilly as a jurisdictional matter, because a complaint against the doctrine itself (articulated as early as 2002) would have surpassed NAFTA’s three-year statute of limitations for launching a claim.

5As was the state appointee, although he did not dissent in either case.

6As the cases moved to the merits, Maffezini prevailed (winning a few hundred thousand dollars), while Plama lost.

7Author’s calculations. The numbers would be slightly higher if examinations of fair and equitable treatment claims where discrimination was a factor in the analysis were concluded. But such parsing is not straightforward as a methodological matter, because tribunals tend to mix and combine the factors in their FET analysis.

8Actually, we have some sense. In BG Group PLC v. Republic of Argentina, Ginsburg signed onto an opinion written by fellow liberal justice Stephen Breyer that rejected the country’s request for review of an adverse ISDS award. The majority (over a sharp dissent from Chief Justice John Roberts), wrote that “international arbitrators are likely more familiar than are judges with the expectations of foreign investors”.

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